Strange bedfellows: EFF, Apache back Microsoft in patent dispute

The EFF and the Apache Software Foundation have filed a brief in support of …

Although building consensus position on patent reform proposals has proved difficult, practically every major stakeholder (except patent attorneys, of course) agrees that the US patent system is broken. As a result, patent problems occasionally generate unexpected alliances between disparate groups at opposite ends of the ideological spectrum. In the latest example, a number of organizations, including the Electronic Frontier Foundation and the Apache Software Foundation, have filed an amicus brief that expresses support for Microsoft's pursuit of revised patent rules.

Microsoft is currently mired in a high-profile patent dispute with i4i, a company that develops collaborative document editing software. The XML editing capabilities in Microsoft's popular office suite are said to infringe related patents that are held by i4i. The courts have consistently sided with i4i, awarding the company $290 million in damages and threatening Microsoft with an injunction. An appeals court upheld the judgement and the US Patent Office (USPTO) has declined to invalidate the patent.

Microsoft is attempting to take the matter to the Supreme Court with the aim of arguing for a change in the rules that govern the process of invalidating patents. Present case law sets a high standard for parties that seek to get a patent thrown out, requiring them to provide "clear and convincing" evidence that the patent is invalid. Microsoft wants the Supreme Court to lower the standard so that only a "preponderance" of evidence is necessary. Such a change would make it easier to invalidate patents on the basis of prior art and other factors.

The EFF and the Apache Software Foundation support Microsoft's argument in favor of lowering the standard because they believe that the current standard is excessive and unfairly disadvantages open source software projects that don't have the resources to fight back against costly patent litigation. Adopting the "preponderance" standard would make patent invalidation consistent with other similar facets of civil law.

"FOSS projects often depend on the collective knowledge of their members and the documentation of the projects as prior art, to the extent that such documents exist," the brief says. "Much of this collective knowledge, however, arguably could not be considered as evidence under the Federal Circuit's current standard requiring alleged infringers to provide invalidity by 'clear and convincing' evidence... Thus, holders of patents that are unnecessarily virtually indestructible because of the inflated standard for proving invalidity pose a particular threat to FOSS."

In addition to discussing this specific issue and its implications, the brief attempts to show how a pattern of poor Federal Circuit rulings have distorted the patent system, including one instance where the Federal Circuit was later rebuked by the Supreme Court for "fundamental misunderstandings" of patent law when a long-standing precedent related to the obviousness standard was thrown out.

The brief contends that the standard set by the Federal Circuit for invalidating patents is similarly flawed and must be corrected. They believe that the Supreme Court should agree to hear Microsoft's case so that they can address the problem.

"In this case, the Federal Circuit has incorrectly interpreted a clear statute. This Court should grant certiorari to correct the Federal Circuit's misreading of [section 282 of the Patent Act]," the brief concludes.

Due to Microsoft's history of making threatening patent statements towards the Linux platform, there are likely some people in the open source software community who would like to see Microsoft get a black eye from i4i. Despite the past friction, the specific patent issue raised by i4i's lawsuit against Microsoft transcends that kind of partisanship and demands unified support. If the Supreme Court agrees to hear Microsoft's case and sides with the software giant, it would be benefit the entire open source software community.